Reviews | Where have all the Conservative rhetoric about judicial restraint gone?


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“Something has gone terribly wrong,” US Solicitor General Elizabeth B. Prelogar told the Supreme Court this week. “That’s not how our constitutional structure is supposed to work.”

Prelogar opposed a federal judge’s order requiring the Biden administration to reinstate its predecessor’s “Stay in Mexico” policy. In the annals of judicial abuse, the case presents a particularly egregious example: a single Trump-appointed judge in Texas effectively dictates US immigration and foreign policy.

Obvious, but not unusual. A day later, another Trump-appointed judge in Louisiana barred the Biden administration from implementing its plans to lift the pandemic border policy known as Title 42. The order is temporary, but the The judge signaled his intention to require the administration to keep in place the public health rule barring asylum-seeking migrants from entering the country.

The previous week, another Trump appointee, this one from Florida, rescinded the Biden administration’s mask mandate for public transportation.

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Judicial review of agency decisions or decrees is not only permitted; it is a fundamental element of the rule of law. The federal courts have served as an important bulwark against executive excesses throughout Donald Trump’s presidency. “The administration’s record in federal courts remains gratifyingly dismal,” I wrote in a column near the end of the Trump administration.

So it’s fair to ask: is it fair to complain about decisions I don’t like from judges with a judicial philosophy I don’t share? I do not think so. Something different is happening here.

The change builds on a phenomenon that took off under the Trump administration but persisted during the Biden presidency: the use of nationwide injunctions — orders issued by a single district court, often strategically chosen for the likelihood of find a sympathetic judge, who will apply beyond the immediate parties to the case to completely block an administration policy.

Now, however, that drive to stop executive action has been exploited by the radical anti-regulatory stance endemic among Trump-appointed federal judges. They have systematically evaded the rule that courts must defer to the expertise of administrative agencies, insisted that Congress speak with clear-sighted precision to authorize regulation, and have transformed textualism from a method of interpretation sensible into an excuse for intervention.

Taken together, these developments offer would-be conservatives — those who profess to believe in judicial restraint — the ability to militarize the federal justice system to hobble the Biden administration.

Conservatives hated these domestic orders, and many liberals welcomed them, when deployed to frustrate the Trump administration, from blocking its travel ban to preventing it from removing protections for immigrant ‘dreamers’ .

A nationwide injunction, warned in 2019 by then-Attorney General William P. Barr, “gives a single judge unprecedented power to render irrelevant the decisions of all other courts in the land.” The following year, Judge Neil M. Gorsuch, joined by Judge Clarence Thomas, denounced the “increasing practice of trial courts ordering relief that transcends the cases before them”, arguing that this creates “an almost limitless opportunity to buy a friendly forum to secure a nationwide victory.

Somehow, conservative complaints have been stifled with a Democratic administration in power. In the “Stay in Mexico” case being argued this week, judges denied the Biden administration’s earlier request to lift a district judge’s order asking him to reinstate the Trump policy. It’s hard to reconcile that with the court’s willingness to intervene when another district judge blocked “Stay in Mexico” from going into effect. What is the difference, exactly, except that one policy was adopted by a Republican president and another by a Democrat?

Combine that with conservative judges’ antipathy to regulation, and you have a recipe for judicial activism. It was on the flower display in the mask mandate case. The judge took pains to ignore statutory language authorizing the Centers for Disease Control and Prevention to take action “if necessary” to limit contagion. It adopted a particularly restrictive interpretation of the provision of the law allowing for “remediation” measures. She discovered that the CDC lacked the authority to take such a “major” action as requiring passengers to mask up.

For good measure, she wrote that despite “nationwide criticism of the injunction” and her own “skepticism” about the edicts, she was obligated to issue an order affecting every passenger in the country. “How does the carpool driver, flight attendant or bus driver know that someone is a plaintiff in this lawsuit with permission to enter without a mask?” she asked.

Oh please. A rule is being imposed nationwide because a few people have said wearing masks makes them panic?

The “Stay in Mexico” case featured similarly tortured textualism. Federal immigration law provides that migrants who are not immediately eligible for entry “will be detained” while their status is being decided. But no administration, Republican or Democrat, has ever detained each of these people. There just aren’t enough beds.

Another provision states that immigration authorities “may return” asylum seekers to Mexico while their case is being decided. The lower courts in the case, ignoring reality and rewriting the language, insisted that “may” means “shall”. The administration, they said, had a simple choice: either detain the potential candidates or send them back to Mexico. But, as Prelogar told the court, “on this reading, every presidential administration, in an unbroken line for a quarter of a century, has been in flagrant violation” of the law.

More worryingly, as Judge Elena Kagan pointed out, lower court rulings give judges responsibility for foreign affairs and immigration policy. “It puts the United States essentially at the mercy of Mexico,” she observed. “Mexico has all the power in the world to say: Well, you want to do this? Want to comply with the court order? Here are 20 things you need to do for us.

Conservatives have taught us for years that judges should not substitute their own political preferences and that courts should respect presidential authority, especially when it comes to foreign affairs.

Something has gone mightily wrong, indeed.

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